Court Overturns Gun Conviction

PHOTO CAPTION: Illustrative photo: The Appellate Division Courthouse in Manhattan houses the First Department, which on Sept. 24 unanimously reversed Robert Fulladosa's five year gun conviction after ruling that the search that uncovered the weapon was unlawful. Photo by AnahitaR, Wikimedia Commons, CC BY SA 4.0.

A New York appeals court has thrown out a man's five year gun conviction after unanimously ruling that police illegally arrested and searched him before finding a loaded handgun in his hoodie.

The Appellate Division, First Department issued its decision Thursday in the case of Robert Fulladosa, reversing his conviction and dismissing the indictment against him.

Fulladosa had pleaded guilty to attempted criminal possession of a weapon in the second degree and was sentenced in August 2022 to five years in prison as a second violent felony offender.

The case began with an anonymous tip.

On March 9, 2022, police received information about a man who allegedly sold marijuana daily near 561 West 175th Street in Manhattan and usually carried a firearm in his waistband.

The tip described the man as short, light skinned and bald, wearing a black and gold beaded necklace.

Officers believed the tip referred to Fulladosa in part because they knew about an earlier gun possession arrest involving him at the same location.

The next day, officers watched Fulladosa engage in what appeared to be two hand to hand exchanges involving small objects and money.

Neither of the alleged buyers was stopped.

When officers approached Fulladosa, they saw him rolling a marijuana cigarette and playing loud music.

Police frisked him but did not find a weapon.

According to testimony cited by the appeals court, officers deliberately decided not to arrest Fulladosa for the suspected drug sales because they had not apprehended either buyer.

Instead, they planned to issue him a summons for disorderly conduct because of the loud music.

Fulladosa told officers he did not have identification.

Police then handcuffed him and prepared to take him to the precinct.

Before transporting him, officers searched him.

That search uncovered a loaded handgun in his hoodie pocket along with marijuana.

A later search at the precinct also recovered a knife and a phone.

Fulladosa was indicted on two counts of criminal possession of a weapon in the second degree and one count of criminal possession of a firearm.

He challenged the search, but the trial court denied his request to suppress the evidence.

Fulladosa eventually pleaded guilty to attempted criminal possession of a weapon in the second degree and received a five year prison sentence.

The appeals court has now concluded that the search should never have been allowed.

One possible justification for the arrest was the suspected marijuana sales officers had witnessed.

But the appeals court said the officers' own testimony showed they had affirmatively decided not to arrest Fulladosa for those suspected transactions.

Prosecutors argued that the existence of probable cause for a drug related offense could still support the arrest and resulting search.

The appeals court rejected that argument under the circumstances of the case.

The judges then examined the reason officers actually used to take Fulladosa into custody.

Police planned to issue him a disorderly conduct summons because of the loud music, but decided to take him to the precinct after he said he had no identification.

The appeals court said that was improper under New York law.

Officers already knew Fulladosa's identity from an earlier arrest and had a method of contacting and identifying him.

Fulladosa also offered to have his parole officer verify who he was.

The court concluded that he was therefore entitled to an appearance ticket for the alleged violation rather than being arrested and transported to the precinct.

Because that arrest was unlawful, the search conducted as part of the arrest was unlawful as well.

The handgun and other evidence recovered as a result should have been suppressed, the court ruled.

Without that evidence, the First Department unanimously reversed Fulladosa's conviction and dismissed the indictment.

The ruling does not say that possessing the loaded handgun was protected by the Second Amendment.

It is instead a search and seizure case centered on restrictions imposed by the Fourth Amendment and New York arrest procedures.

The result nevertheless eliminates the gun conviction that had resulted in Fulladosa receiving a five year prison sentence.

Police had found a loaded handgun.

But the appeals court concluded that they found it through a search that the law did not permit.

(Source: OAF Nation)